Jammie Appeals, Citing "Excessive" Damages

Peerless writes "Capitol v. Thomas defendant Jammie Thomas has officially appealed the RIAA's $222,000 copyright infringement award. She is seeking a retrial to determine the RIAA's actual damages, arguing that the jury's award was 'unconstitutionally excessive': 'Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony-BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate." In her motion, Thomas argues that the labels are contending that their actual damages are in the neighborhood of $20. Barring a new trial over the issue of damages, Thomas would like to see the reward knocked down three significant digits — from $222,000 to $151.20.'"

Comments

Sig digs

[UbuntuDupe]

151.20 actually has more significant digits than 222,000. (Perhaps "orders of magnitude" was the term peerless wanted?)

But who cares, when you're coming up with a cutesy way of saying something, right? (Make sure to use the terms "north of" and "south of" when comparing numerical values.)

Re:Sig digs

[digitig]

The origin of the $222000 probably has three significant figures, because that's probably how precisely the person who was setting the fine was working in their mind. However, once the fine is set, it is $222000.00, eight significant figures of cents, as she would discover if she tried only paying $221999.95. Those last zeros are significant.

The difference in the number of significant figures between the juries mental processes and the actual fine, even though the actual number is the same and has the same meaning, is an interesting one in the recent debate on another story over whether math is objective.

From what it sounds like...

[ravenspear]

This may be the first intelligent thing this women has done in this case. I mean she was obviously guilty, lied in an attempt to cover it up, and miserably failed to prove anything to the contrary at trial.

This position on the other hand is very well reasoned. $200k+ is completely outrageous damages even assuming a large number of people downloaded the material she made available. Hopefully there will be a judgement against this damage award that will call attention to how excessively high the statutory damages are, and might even overturn that part of the law.

Re:From what it sounds like...

[rucs_hack]

her suit was almost frivolous, in that she was in no way innocent, she did what she was accused of, and she knew it. Had she got away with it, it would have been a bad thing for the courts.

The problem is the RIAA wanted her to pay their fine originally, a 'legal' fine imposed without recourse to legal help for the victim. That was also wrong. So she put herself in a position where she was at risk from an unsuitable scale of punishments, because the RIAA have avoided having file sharing properly tested in court, so the punishment scale is way too high.

In a reasonable world, file sharing would attract a parking ticket type fine, and too many would mean your ISP would cut you off for a month or so, or for good if your stupid and don't pay your fines.

Re:From what it sounds like...

[Atario]

Agreed. At the absolute most the RIAA should have to prove how many people actually downloaded from her and then multiply that with the retail cost of the music. That's an absolute most (a better way would be to prove the people who downloaded from her would otherwise buy the actual song if they couldn't illegally download it. Given the amount of digital piracy that goes on its quite impossible for most to buy all of what they illegally pirate).

You forgot to multiply by the fraction of each file each person got from her.

Re:From what it sounds like...

[arkhan_jg]

I don't agree that it wasn't a case worth fighting. They had no evidence that she committed any copyright infringement. Only that her computer, probably at her direction 'made files available' for copyright infringement. The judge changed his mind on the basis of an argument misrepresenting another court case, to allow making available to also be classified as copyright infringement in the jury instructions. Without that jury instruction, it's entirely possible she would have been found not liable, as the music company didn't even look for infringement, just for the possibility of it.

In that light, I expect all photocopiers to now be removed from US libraries, as they are also making available books and a means to copy them.

However, I do agree that if someone were to be found liable for copyright infringement for non-profit and personal use, the fine should represent actual losses plus a bit, rather than a hundred times them as a deterrence. The scale should distinguish between commercial large scale infringement for profit, and small scale personal infringement.

To draw a a parallel with the drug laws in my country, small possession for personal use of illegal drugs is treated a lot less harshly than running a drug distribution business. A punishment, increasing for repeat offenders; but not a life-destroying punishment for a first, small personal offence.

Re:From what it sounds like...

[Anonymous Brave Guy]

How strange to see a reasoned, balanced post in such a discussion.

I personally am not convinced about the staggering amount of damages here. However, I do wonder how many of the people who argue that she should only have to pay for actual damages based on demonstration by the RIAA of specific downloads are the same people who object to having the authorities tracing their Internet use, want to preserve on-line anonymity at all costs, etc. If you're going to argue for a system where it's almost impossible for someone to bring a case, yet where it's pretty obvious that a substantial amount of damage is being done and the only question is where to draw the line, then you can't argue that in a successful prosecution only token damages should be awarded and maintain any credibility.

Re:From what it sounds like...

[Kjella]

Only that her computer, probably at her direction 'made files available' for copyright infringement. And if she 'made files available' implies that she authorized distribution, it's a copyright violation.

106. Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: Merely sharing something may not count as distribution. But unlike say a Windows share, the file was uploaded to an index specifically created for exchanging files. That may (ignorance defenses aside) be considered authorization.

All I'm saying is, it's not entirely clear in US law that an actual copy must have been made (the "do" part), it may be enough it was put up for distribution (the "authorize" part). You certainly see arguments along those lines.

Re:From what it sounds like...

[ShieldW0lf]

What needs to happen is for someone to stand up and say "Yes, this woman downloaded music. But it's your corrupt laws that are at fault, serving the interests of criminal racketeers and destroying lives, and we're going to put a stop to it."

Then millions of people need to follow them in stringing those responsible for this circus up by the neck.

You don't negotiate with racketeers and terrorists.

Re:From what it sounds like...

[shywolf9982]

So that means you copy a CD online and you damaged them $15 or so.
So in this system what is going to prevent everyone from stealing first and paying later? If the only amount you pay is close to what you would have payed anyway it makes good business sense to steal. With all that said this whole case is ridiculous but thats because of the jury instructions as you mentioned, not the final amount she might have to pay. That is just layers of ridiculousness.

That was not the point of GP. The whole point is that, although higher than the commercial value of what you stole, you shouldn't be fined for an overly excessive amount of money.

Let's assume you hate someone, deeply, and you decide one day to break his/her car's left mirror. It would be okay if they awarded the plaintiff a $300 in damages, but it would surely make me raise an eyebrow if they fined you for $5k: and that was the point of the GP too.

I don't know if, in this case, they have detailed the amount of damage they had: but here where I live, you should bring proof and calculations of the damage by an independent expert in order to get awarded the damage.

In this case, it doesn't seem to me that they did so: since apparently Sony/BMG said they were still in the process of calculating said damage: once they had, this data should be reviewed by an expert nominated by the court and only at last the defendant should be fined.

Re:From what it sounds like...

[Eivind Eklund]

But there is no evidence a substantial amount of damage is being done. No admissible or inadmissible evidence.

Oh, please. That line is about as credible as the RIAA claiming $150,000 per infringing track.

I've tried to look carefully at the evidence. To me, it is not clear that there is damage. There may be, and less probably it may be substantial - but there isn't any evidence showing either clearly. The evidence seems to indicate that file sharing lead to decreased purchases among teenagers and children (with low disposable income) and increased purchases among the older and more affluent crowd. Anecdotally, I can say that when I was pirating music with Napster, I also purchased much more music, as I got into listening to new music all the time.

If you feel that there is clear evidence available showing that the situation is different from what I've understood, I'll be glad to accept and read a reference.

Eivind.

Re:From what it sounds like...

[rtb61]

So you are saying she failed to prove she was innocent, stop and think about that for a second. The fine should stand, what needs to be adjusted is the burden off proof required for that level of fine. Obviously an isp's record for a basic internet account, or a private for profit companies record of activity of that IP address, is wildly insufficient for that level of penalty.

What real evidence, that would actually be accepted in a criminal court, was actually submitted, the reality none was. What little evidence was submitted was all circumstantial, and in fact no evidence at all was submitted that the defendant, as an individual, actually did what she was accused of doing. The activity of an IP address is not the activity of a person.

Of course the RIAA would argue, they could spend more in a civil court, so they deserve to win, because that is the real issue in question here, not guilt or innocence, not justice, just who could spend more in civil court on the day, a single mother with two children, or the legal arm of multi billion dollar corporations (I bet the drunken drugged up minstrels sitting in their mansions are happy with the work of their music publishers).

Re:From what it sounds like...

[cpt kangarooski]

It doesn't work like that. A court would look at the big picture, rather than get stuck on any single fraction of it.

Remember that this is a human law, applied to human behavior, with humans interpreting and applying it. The courts are not machines and are not vulnerable to the same sorts of attacks as a purely mechanical system; yet you're acting as if they are. You're also acting as if you're smarter then them, when in fact there are lots of very smart people working in all capacities in the system.

A rule of thumb: if you're clever enough to think of a way to fool the courts, then they're clever enough to see through it, and they won't appreciate your attempt.

Re:From what it sounds like...

[earthforce_1]

Even then, a lot of people download stuff they would never buy - Like a 15 year old who uses a cracked copy of MS-Office or Photoshop, instead of using Open Office or GIMP. People download stuff they would never actually go out and pay for.

Re:From what it sounds like...

[Opportunist]

Yes, that would make sense. But how about instead of some arbitrary "damages" which are in no relation to the price of the product damages that can sensibly be assumed? IIRC we were talking about 24 songs here. Now, at $1 retail price per song, to rack up "damages" around 200k USD, every single song would have to be downloaded about 1000 times, from her exclusively. Not from someone else, not even partly. Now, the way P2P works, it's unlikely the whole song was downloaded from her, but let's say that 20% of every song downloaded from her were actually from her. Which means that every single song would have to be accessed about 5000 times to reach the "damages" claimed here.

Can we agree that this is unlikely to say the least?

Not to mention that anything like this first of all would have to be proven, at least in free countries.

The problem with assessing the "real damages" starts with the lack of even remotely unbiased statistics concerning the ratio between songs sold and songs copied. To assess the real damage done, one would at the very least need:

Number of copies P2P'ed instead of bought.
Number of people offering the song.

For every single song. Then you could actually find out what damage every P2P participant causes.

And no, sorry, "But we only catch one out of ten thousands" is no excuse. Or do you think it's ok to punish every pickpocket with a million crimes 'cause you only catch one out of a few thousands?

Re:From what it sounds like...

[xenocide2]

To draw a a parallel with the drug laws in my country, small possession for personal use of illegal drugs is treated a lot less harshly than running a drug distribution business. A punishment, increasing for repeat offenders; but not a life-destroying punishment for a first, small personal offence. I'm not familiar with the specifics of the case in the article, but I'd like to propose a question about distribution: if you use bittorrent as intended, is this puff and pass, or selling drugs to minors? Which way does such an analogy fall? And if you inhibit the upload is that like smoking but not inhaling?

Re:From what it sounds like...

[Eivind]

Luckily law doesn't work like that. It doesn't concern itself with irrelevant details.

If the start-point is that you have a file. And the end-point is that you have the file AND I have the file, then a file was copied. The spesific technical and mathemathical details between don't make a lick of difference. Nor should they.

Re:From what it sounds like...

[Anonymous Brave Guy]

I've read many such things before. I make a point of getting some basic background information straight before getting into these discussions. I have also read widely (and written in formal consultations) on the nature of copyright more generally. The fact that I did not have time to look up a poorly cited source from reference material of dozens of pages just to reply to one Slashdot post does not mean anything other than that I do not have infinite time. The studies I have seen before — some of which were cited in the literature survey mentioned — all say much the same thing.

Talking about democracy, it certainly doesn't help when economically naive and poorly informed people start thinking its OK to break the laws underpinning a major area of the modern economy, and then reason this away with vague "no damage was done" type arguments. If you believe strongly that the law is wrong, campaign to have it changed, support organisations that do so with your time and/or money, or vote for someone who agrees with you if you can. Everyone whinges about Big Media lobbying, but ultimately, Big Media doesn't have a vote, and it's a lot smaller than The People.

As you said, democracy will indeed die if people just go "Huh?", which appears to be as much as the average copyright infringer on Slashdot can muster by way of justification for their illegal actions. If people cared as much as you would like, we would long since have seen Big Media taken down a peg or three under anticompetition legislation, their price-fixing for physical media and lock-in techniques for electronic copies would have been ruled illegal, their abuse of the legal system as a threat mechanism against genuinely innocent parties would have been taken down as the protection racket that it is, and we would have a genuinely competitive market in which those who take advantage of the new opportunities presented by the Internet age will succeed, while those who rely on outdated business models will fail.

Incidentally, your change of emphasis in the quote doesn't defeat my point at all, which was that the earlier claim that on-line file-sharing boosts sales isn't supported by the literature nearly as clearly as the original poster implies. The fact that the quote does say that the effect appears to be quite small (if you count millions of dollars a week as "quite small") does not mean that the effect is in the other direction, which was the claim being challenged.

Re:From what it sounds like...

[bhhenry]

Why the retail cost of the song? Is the RIAA going to give $0.30 of every dollar to Apple? The RIAA can't clam to lose what it would have to pay a retailer to distribute the song.

Re:From what it sounds like...

[NewYorkCountryLawyer]

You are correct. There was absolutely zero evidence of any actual damages. Although I would concede that the actual damage for infringement of 24 song files would be in the neighborhood of $8, or 1/30,000 of the award.

But the RIAA didn't actually have to prove any infringement; the jury instruction freed them from that burden.

Re:From what it sounds like...

[orclevegam]

There's an expression, the punishment should fit the crime. If you stole some candy bars a proper punishment might be a small fine, say $100, or perhaps 6 months of community service or some other small punishment. If the statutory fine for stealing a candy bar was $6,000 per candy bar, you'd sure as hell see people fighting it in court. That's the point, the damages that are being awarded for these cases are grossly out of proportion to the offense, it's like getting the death penalty for trespassing.

big numbers

[mastershake_phd]

Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony-BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate."

If they include legal fees, and what they spend tracking down file sharers, it just might be more than she has to pay.

Re:"unconstitutionally excessive"?

[ahuard]

The US constitution grants the vast majority of American's rights and freedoms, so when these are attacked the constitution is always cited. There are sections in there that grant all rights not mentioned (or thought of at the time of writing) to the people and the states -- not the federal government. So even if a violation is not specifically mentioned in the constitution, the constitution can still be used as a defense (ambiguous to be sure, but it works as a potential argument when the government tries to assert an authority it shouldn't have).

They planned it all along

[freshmayka]

1. Fight the RIAA, go for the jury trial
2. Hold your ace close and play the first round to lose
3. ???
4. Less PROFIT for the RIAA!



And now we know that #3 is:

Appeal $220k reward on Constitutional grounds! BRILLIANT!

Seriously! There is at least one juror who has already opened his mouth to the press and said something to the effect of "the punishment is so high because we want to send a message that this is a bad thing to do... mmmmKay..." Which... ::cough cough:: is against our Constitution in America.

Re:They planned it all along

[pnuema]

Is it fair for the hundreds of thousands of people who work at Exxon to pay for the foolishness of that captain who ran aground up in Alaska?

Damn right. Those "hundreds of thousands" made a ton of money before that incident. You share in the success, and you share in the failures. Everyone together.

Is it fair for the thousands of hard working folks at GM or Ford to pay when some drunk drives a car into a tree?

Um, what?

Is it fair when the hundreds of hard working rock and roll stars (hah) lose their retirement because some decides to "share" the music with hundreds of thousands of their closest friends?

What does this have to do with punitive damages?

This is a problem for the typical slashdot poster. Corporations are made of people too and juries routinely come down hard on corporations. That's celebrated here because the jury is hanging some big, faceless machine. But there the corporation is made up of people and all of those fines at Exxon came out of the retirement fund of thousands of people.

And this is the problem with your typical "I get my news from Fox" conservative. Either a corporation is a legal entity under the law or it is not. Corporations get to lobby, give to political campaigns, and shield their employees from liability because of that standing. You can't treat them like they are a single entity when it is convenient (i.e. profitable), and scream they are "made up of people, too" when it suits your purpose. And your definition of "coming down hard" is a bit ill informed, I feel. I've never heard of a damage judgment that wasn't well within the corporation's ability to pay, and still turn a profit for the year.

Personally, I think the world would be a much better place if when a corporation broke the law somebody has to go to fucking jail, but in the meantime, you can't have it both ways. The only way we have to punish a corporation when they break the law is through financial penalty, and the punishment must scale by the corporation's ability to pay. Otherwise, they would be completely lawless.

Copyright is not a right

[speaker of the truth]

The [RIAA] spokesman told Ars., "We will continue to defend our rights." Copyright is not a right (despite its name). It is a legal privilege given to certain people for a finite amount of time. Unfortunately big business and Congress have forgotten this.

8th Amendment

[ravenspear]

She could be referring to the 8th Amendment, which states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Re:8th Amendment

[speaker of the truth]

This isn't a fine. This is an award for her infringing on somebody's copyright. Unfortunately that part of the constitution wouldn't apply (IANAL).

Re:8th Amendment

[ravenspear]

Well it still could be a cruel and unusual punishment, cruel because it could bankrupt her and/or ruin her life, and unusual because it is rather large for the crime that was committed, especially considering that we don't know whether any infringement actually took place, she was convicted just on the "making available" part.

Re:Know when you are beaten

[speaker of the truth]

She was guilty, clearly, obviously and transparently. she got caught. WTF is going through her head? "I shouldn't have to pay $222,000 when I only uploaded it to 5 people"? Not such an unreasonable thing to think.

Re:Consent of the victim

[Teancum]

I'm going to echo the AC response to this posting, and re-emphasis an unanswered question I've posted on earlier threads about Jammie:

Is this the RIAA you are talking about, or is this the supposed pirates?

Or more specific and to the point, assuming either compensatory claim is made (either the $200,000 fine or a much reduced $200 fine) will any of the actual musicians who produced the music Jammie is alleged to have offered to be copied receive even a single penny from the settlement? Does the RIAA even have an accounting mechanism to determine who should get the money, presuming that Jammie is being convicted of a copyright violation of several explicit songs that can be named by both title and artist, including song writer and performer?

If the RIAA is truly acting as an agent for and in behalf of these musicians and seeking compensation directly for them in terms of violating the copyright of these genuine artists, I would completely agree with your statement you have made. I do not condone Jammie, but at the same time I question the legal standing of the RIAA, who only represents the record labels... and even that indirectly. A class-action lawsuit (which this court case seems to fit the rough definition of one... the class being defined as the musicians whose music was distributed illegally by Jammie) in any other industry would be considering these settlement terms to be unconscionable and unconstitutional just from the standpoint that those "harmed" have not been fairly compensated at all. It would be like an ACLU lawsuit where the lawyers kept 100% of the settlement.

All this said, there should be some mechanism in place where an ordinary musician can actually make some kind of financial compensation for electronic distribution of their music. From nearly everything I've read regarding the current state of the music industry, this mechanism simply is not in place at all, so there is little incentive for new and emerging musicians to really care about the RIAA cartel. By far the worst thing a new musician can do is sign a contract with an RIAA company, except for the hope that you can eventually hit the major leagues of the top musicians. But don't expect the label to assist you in that journey.

American Idol, Pop Idol, and other similar music competition are a symptom of an industry falling apart: The system is so rigid and unable to be able to find new talent that they have to go through gimicks like a national talent search. For every Ruben Stoddard and Kelly Clarkston that has been found by the major labels, hundreds of otherwise good musicians were passed over and thrown overboard, many of whom could have earned a professional wage to perform music, even if it wasn't necessarily living life as millionaires. It is this level of talent that the current RIAA system has completely failed.

Re:"unconstitutionally excessive"?

[Anonymous Coward]

Being sensitive and respectful is good and all. But using force of law to force someone to be sensitive or respectful is wrong. Besides, I think censoring the very issues you're talking about is very disrespectful to the people who actually lived through those troubled times. Just not to mention that freedom of speech should trump everything and anything. Finally, 60 years have passed since the end of the war. Time to lighten up?

Re:Know when you are beaten

[speaker of the truth]

Guess her first thought then was "I shouldn't have to pay $3,000 when I only uploaded it to 5 people." Still sounds reasonable to me.

Re:Know when you are beaten

[itsdapead]

She was guilty, clearly, obviously and transparently. she got caught. WTF is going through her head? if she had common sense she would have taken the very low settlement fine that was originally requested.

Even if someone is as guilty as sin then they deserve justice and a "punishment" that is proportionate to the "crime" ( whether or not "crime", "punishment" or "guilty" are appropriate words in a copyright case, charging a private individual a six-figure sum sounds like a "punishment" to me). "Waive your right to a fair trial and pay us $2000 now, or enjoy your right to a trial and risk us taking your house" is not justice, it is a license to extort.

If a civil court feels that a defendant has lied, it should bring a criminal charge of perjury and let a criminal court decide the punishment. It should not be the place of a civil court to punish someone, without trial, for a criminal offence ramping up the so-called "damages".

If a civil court feels that a defendant has wasted their time and the plaintiff's money by fighting bringing a meritless case, they should add to the reasonable and audit-able damages, some or all of the reasonable and audit-able costs of the case (...bearing in mind that the defendant already has their own costs and that a large, corporate plaintiff may have lawyers on staff, and that its not unreasonable for the main beneficiaries of artificial laws like copyright to bear some of the cost of enforcement ). They should not leave it to a jury to pull some figure out of a hat and call it "damages".

Can't even claim a loss

[IndustrialComplex]

Photoshop is a good example.

This product is so expensive that I am willing to bet that 90% of copies are unlicensed.

Now, if I were a professional photographer, or graphic artist, I wouldn't hesitate for a moment to purchase a copy of Photoshop. (In fact, when I had access to a reasonably priced version, I did purchase it)

Ignoring music for a moment. This is a significant problem in the software industry. They have set the price so high that I'm certain that they expect, and potentially even encourage limited piracy to increase their market saturation.

In cases like that, can they even argue that there is a monetary loss? I suppose that is why set penalties are in place.

reasonable to you, maybe

[westlake]

n a reasonable world, file sharing would attract a parking ticket type fine

In the real world you have been caught uploading files to 10 million of your closest friends on the P2P nets. Music that sells at $1 a track through iTunes. The $20 video, the $50 video game.

Broadband penetration in the U.S. is about 40%. The service costs $20 to $50 a month. The file sharer on any scale will have a mid-line system or better - with hundreds or thousands of gigabytes of storage.

To the civil jury you don't look like a senior on a starvation budget. You look like a petty thief and a liar, a white collar criminal who sees his free media fix as a middle class entitlement.

The civil jury isn't a traffic court, it doesn't issue fines payable to the state. That is not its job.

The civil jury compensates the injured party. It awards punitive damages when the public interest demands it.

It can be very comfortable awarding damages based on a rigorous statutory formula that treats the uploader as an unlicensed wholesaler whose total distribution has no known or knowable limits.

Re:"unconstitutionally excessive"?

[thomas.galvin]

The US constitution grants the vast majority of American's rights and freedoms, so when these are attacked the constitution is always cited. I understand why you said this, but it is completely inaccurate. The Constitution grants certain powers to the Federal government, and specifically outlines some things which is it not allowed to do. The rights of the people are, in the minds of the people who founded the American nation, an inherent part of being human. That cannot be given by some document or some government, they simply are. Freedom of speech is a human right, and that right cannot be taken away. The ability to speak can be removed, but not the right.

Your point of view, however, the idea that the only rights we have are those granted to us by the constitution, has become much more common, and it's a big part of why we're in the legal and political mess that we are. The question is no longer "what is the government allowed to do," but "what are the people allowed to do." Our freedom is limited, not the freedom of the government.

This is the very reason some of the founders resisted adding the Bill of Rights to the constitution; they feared that it would become an enumerated list of all of our rights. Indeed, it has; as far as I know, not a single case in all of American legal history has turned on the 9th amendment.

Re:Almost right.

[operagost]

You forgot to close your tag.

I think you mean "decimal point"<full stop />

There you go. Now it validates!